He who lives by the pen and phone, dies by them.
After Democrats lost control of the Senate following the 2014 election, President Obama bragged that he would use his “phone and pen” to implement immigration policy he could not get through policy. And act he did. Obama rewrote wide swaths of immigration law through executive actions and policy directives to federal agencies.
“[Trump can] tear up all of Obama’s executive actions and memos and prosecutorial directions — and that’s a big deal.”
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When President-Elect Donald Trump takes office, he can use the same tools.
“[Trump can] tear up all of Obama’s executive actions and memos and prosecutorial directions, and that’s a big deal,” said Mark Krikorian, president of the Center for Immigration Studies.
Krikorian’s Washington-based think tank, which favors lower levels of immigration, put out a list in April detailing 79 different immigration-related policy recommendations that the next president could take without congressional approval. Krikorian said Trump also could make a big impact on immigration policy simply by enforcing laws already on the books.
“The directives from the Obama administration essentially boiled down to: Don’t enforce immigration law unless you kill somebody,” he said.
Obama’s two biggest unilateral actions were a pair of programs to shield certain groups of illegal immigrants from deportation — Deferred Action for Childhood Arrivals and Deferred Action for the Parents of Americans.
Trump will have some decisions to make about how to proceed. DAPA currently is blocked by the courts. He could revoke the executive action that created it, or let it play out in court in hopes that the Supreme Court will declare it unconstitutional, restraining a future president from reinstating it. That would leave Trump with the option of rescinding it if the courts determine the program is legal.
“If he was going to follow that route, he’d probably want to fill the vacancy of the Supreme Court first,” said Chris Chmielenski, director of content and activism for the advocacy group NumbersUSA.
DACA is another matter. About 750,000 illegal immigrants who came to American as children have been allowed to stay in the United States and have been issued work permits. They tend to be a sympathetic group of illegal immigrants, since their presence in America is due to their parents.
Trump could simply end the program cold turkey and revoke work permits issued to recipients. Krikorian said it would be politically smarter to let the program gradually wind down, stopping new permits and failing to renew ones that expire.
Krikorian said Trump could bargain with Democrats in Congress, offering to convert DACA recipients into permanent green card-holders in exchange for eliminating the immigration “lottery” that admits people randomly and prohibiting immigrants from sponsoring extended family members for permanent residency. That would reduce immigration by between 150,000 and 200,000 people a year.
Ira Mehlman, a spokesman for the Federation for American Immigration Reform, said Trump faces a target-rich environment when it comes to immigration changes.
“The most obvious is DACA, but there are many, many other policies that were changed just because Obama wanted a new policy,” he said.
A stronger border presence, combined with more aggressive enforcement in the interior of the country would help, Mehlman said.
“The other thing he could do is stop encouraging people to cross the border in the first place,” he said.
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[lz_table title=”ICE Worksite Audits” source=”Immigration and Customs Enforcement”]Fiscal Year,Number,Fines
2009,1 444,$1.1 million
2010,2 196,$5.8 million
2011,2 496,$8.2 million
2012,3 004,$8.5 million
2013,3 127,$9.5 million
2014,1 320,$8.5 million
2015,1 242,$17 million
Krikorian said he would expect Trump’s administration to work closely with local law enforcement to deport criminals.
“The flip side of this is I think there’s going to see pretty quick action against sanctuary cities,” he said.
Krikorian said one thing Trump could do is direct his Department of Justice to cut off grants to so-called “sanctuary cities” that refuse to cooperate with federal immigration authorities. And if that does not work, he said, there are other grant programs. He noted how the federal government coerced states into reducing the speed limit to 55 mph by threatening to withhold highway funding.
Krikorian said Trump also should implement a visa checkout system to track foreigners who come into the country legally. Many stay after their visas expire, and the federal government often loses track of them.
Congress mandated a tracking system in 1996 and has reaffirmed it seven times, Krikorian said, adding that the 9/11 commission called it an imperative. He said such a system likely would take longer than 100 days to develop.
“What the White House — the next White House — can do is make it clear that this is a priority,” he said.
Chmielenski mentioned changes to the F-1 Optional Practical Training program, which allows international students pursuing science, technology, engineering and math (STEM) degrees to remain in the country after graduation. He criticized the Obama administration’s loosening of regulations governing the H-1B visa and its expansive use of “parole” powers to allow certain foreigners into the country.
“We would like to see [Trump] revoke most of their actions — if not all of them,” he said.
Krikorian said he expects Trump to freeze refugee resettlement pending a review of the program.
Long-term, Krikorian said, Trump should press Congress to make mandatory the E-Verify system that checks the immigration status of job applicants. Krikorian said the president can take actions to encourage voluntary compliance. One way, he suggested, is to insist on consent decrees mandating compliance as a part of enforcement actions at job sites.
On Trump’s signature issue — building a border wall — Krikorian doubted that a “Great Wall of China” ever would be constructed. But he said it certainly is feasible to replace 3-foot fencing on parts of the border meant to stop trucks with 12-foot-high fencing to also stop foot traffic.
Chmielenski said Trump could make much progress without Congress by stopping catch-and-release policies and immediately returning illegal immigrants caught at the border. He said progress could be achieved without an increase in border agents.
“The manpower is probably already there,” he said. “But for the most part, they’re handcuffed.”